People v. Edwards CA2/2 ( 2014 )

Filed 9/26/14 P. v. Edwards CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B245782
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA090257)
v.
LEBARRON JAMES EDWARDS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Douglas
Sortino, Judge. Affirmed.
Law Offices of John P. Dwyer and John P. Dwyer, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
******
Appellant Lebarron James Edwards and an accomplice robbed a number of Check
‘N Go stores in Los Angeles County over a six-week period in 2010. A jury convicted
appellant of eight counts of second degree robbery (Pen. Code, § 211, counts 1, 7, 9, 13,
15, 18, 25, and 27),1 seven counts of kidnapping for robbery (§ 209, subd. (b)(1), counts
2, 6, 8, 12, 14, 24, and 26), and three counts of possession of a firearm by a felon
(§ 12021, subd. (a)(1), counts 11, 20, and 29). The jury also found true firearm
allegations under sections 12022.53, subdivision (b) and 12022, subdivision (a)(1). In a
separate proceeding, the trial court found that appellant suffered eight prior strike
convictions and served three separate prison terms (§§ 667, subds. (a)(1) and (b);
1170.12, subds. (a)-(d); and 667.5, subd. (b)). The trial court sentenced appellant to a
prison term of 422 years to life. The trial court stayed a combined sentence of 357 years
to life under section 654, and ordered appellant to serve a concurrent term of 75 years to
life for being a felon in possession of a firearm. The trial court awarded appellant 1,992
days of presentence custody credit.
Appellant contends (1) he was denied his constitutional right to represent himself,
(2) the evidence was insufficient to sustain the kidnapping for robbery convictions, and
(3) he received ineffective assistance of counsel.
We affirm.
FACTS
Prosecution Case
1. Check ‘N Go Store–Hawaiian Gardens–Counts 18, 20
On March 1, 2010, at approximately 1:05 p.m., Tammy Scott the manager of the
Hawaiian Gardens Check ‘N Go saw appellant and Michael Utley get out of a black SUV
and approach the front door of the store. The two men entered the store and appellant
grabbed Scott and threw her to the ground. Both men had guns and Scott heard appellant
tell Utley to go into the back room and if anyone was there to “shoot them.” Appellant
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
took approximately $3,500 in cash from the cash drawers. Appellant told Scott to lay on
the ground and count to 1,000 before she got up.
Scott positively identified appellant in a photographic lineup and in court.
2. Check ‘N Go Store–Sun Valley–Counts 12-15
On March 22, 2010, at approximately 1:50 p.m., Veronica Pineda and Brina
Okamato were working at the Sun Valley Check ‘N Go when appellant and Utley entered
the store. One of the men took out a gun and said “Get on the ground. It’s a robbery.”
Appellant took cash from a cash drawer and ordered Pineda and Okamoto to go to the
bathroom at the rear of the store. Utley searched the purses of Pineda and Okamoto and
took their cell phones and identification. Appellant was unable to open the second
drawer and Okamoto was brought out of the bathroom and told to open the cash drawer.
Pineda was told to step out of the bathroom and lie on the ground. After Okamato
opened the cash drawer at the front of the store, she and Pineda were ordered back into
the bathroom. They were told to “count to 500” and not to come out.
Pineda identified appellant and Utley from photographic lineups and at the
preliminary hearing. She identified appellant in court during trial.
3. Check ‘N Go Store–La Puente–Counts 24-27, and 29
On March 29, 2010, Ruben Martinez and Jessica Inostros were working at the La
Puente Check ‘N Go. At approximately 4:00 p.m. appellant and Utley entered the store.
Appellant pointed a gun at Martinez and Inostros and ordered them to lie on the floor.
Appellant and Utley took the money from the cash drawers. They ordered Martinez and
Inostros to go to the back of the store and locked them in the bathroom. Martinez
identified Utley in a photographic lineup and at the preliminary hearing. Appellant
looked familiar to him but he could not positively identify him at trial. Inostros viewed
the security video of the robbery. The video showed appellant entering the store and
pointing a gun at Inostros. Inostros identified appellant from photos taken from the video
and she also identified appellant in court. The photos taken from the video show the
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person Inostros identified as appellant pointing a gun at her. Inostros’s husband was in
the military. She had gone shooting with him and knew “a little bit about guns.”
4. Check ‘N Go Store–Covina–Counts 6-9, and 11
On April 1, 2010, Jason Cheng and Alma Sandoval were working at the Covina
Check ‘N Go. At approximately 1:35 p.m. Sandoval saw appellant and Utley enter the
store. Appellant pointed a handgun at Sandoval and told her to be quiet. The gun was
small and black and looked like a nine-millimeter automatic pistol. Sandoval and Cheng
were told to kneel down behind a store partition. Cheng gave appellant and Utley the
store surveillance tape and then he and Sandoval were ordered to the back of the store.
Appellant and Utley took Cheng’s cell phone and wallet and approximately $2,000 from
the cash drawers. Appellant ordered Cheng and Sandoval into the bathroom. Cheng and
Sandoval were told “to count” and not to come out of the bathroom for a couple of
minutes.
Sandoval identified appellant from a photographic lineup. She could not identify
Utley from photos or at the preliminary hearing but was sure of her in-court identification
of appellant at trial. Cheng identified Utley in a photographic lineup.
5. Check ‘N Go Store–Pomona–Counts 1 and 2
On April 5, 2010, Eva Gonzalez was the manager of the Pomona Check ‘N Go.
Shortly before noon, appellant walked into the store armed with a handgun. Appellant
pointed the gun at Gonzalez and ordered her to get under the counter. Utley then entered
the store and he also had a gun. After taking the money from the cash drawers, appellant
ordered Gonzalez to open the safe. The safe operated on a 10-minute time delay and
appellant and Utley took approximately $2,000 from the safe when it was opened.
Gonzalez was taken to the back of the store and handcuffed to her desk.
Security video of the robbery showed appellant with a gun in his right hand
entering the store and jumping over the counter. Appellant was not wearing gloves and
he had a piece of paper in his hand when he jumped over the counter. Gonzalez
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identified appellant from the security video and from a photographic lineup, and also
positively identified appellant in court.
6. Investigation
On April 5, 2010, Pomona Police Officer Steve Prentice recovered a two-page
printout of Check ‘N Go locations from the counter of the Pomona store. The printout
did not belong to the Check ‘N Go store. The addresses of some stores were crossed out
and the address of the Pomona store was circled. Forensic testing showed appellant’s
fingerprints on the printout.
On April 8, 2010, at approximately 2:45 p.m. Maria Razo was in her car outside
the Northridge Check ‘N Go. Razo was waiting for her shift to begin at 3:00 p.m. when
she saw two men acting suspiciously approach the store. Razo called her manager and
told her not to unlock the store doors. The men walked to an alley and drove off in a
black Chevy Tahoe. Razo gave the license plate number to her manager and the incident
was reported to the police.
Alhambra Police Officer Wilfredo Ruiz was part of a task force investigating the
Check ‘N Go robberies. Officer Ruiz was aware of appellant and Utley, and a possible
link to a black Chevy Tahoe SUV. On April 9, 2010, Officer Ruiz and his team stopped
Utley while he was driving a black Chevy Tahoe SUV and detained him. Pomona Police
Officer Ruben Castillo searched the Chevy Tahoe and recovered a four-page printout of
an internet search for Check ‘N Go locations. He also recovered two sets of handcuff
keys from the vehicle.
Los Angeles County Deputy Sheriff Antoinette Bowen testified that on
June 8, 2009, she stopped a car driven by appellant for a traffic violation. Utley was a
passenger in the car.
Defense Case
Appellant presented a defense of mistaken identity. Ida Edwards, appellant’s
mother, testified that appellant visited her when she was in hospital on certain dates.
Ms. Edwards admitted her memory was not good because of the medications she took.
5
DISCUSSION
I. Appellant’s Pretrial Request to Represent Himself Was Properly Denied
Appellant contends his convictions must be reversed because the trial court
erroneously denied his pretrial right to represent himself, in violation of Faretta v.
California (1975) 422 U.S. 806 (Faretta).
Appellant appeared with counsel on March 22, 2011, the day that trial was set to
begin. The trial court was about to grant a continuance at defense counsel’s request when
appellant asked to address the court. Appellant stated “I would like to go on record and
exercise my Faretta rights at this time.” The court obtained appellant’s time waiver and
granted the continuance to April 27, 2011. After appellant completed the Faretta waiver
forms he expressed a misunderstanding of his counsel’s actions. The court asked if he
wanted to retain new counsel rather than represent himself and appellant responded, “Yes
sir.” At the subsequent Marsden hearing,2 appellant advised the court that he was
suffering from some health issues involving his nerves and his teeth. Appellant felt his
counsel was “not really giving” him “100 percent” and was not conducting an adequate
investigation. Counsel explained to the court that he had investigated appellant’s case
including appellant’s claimed alibis for the robberies. Counsel understood the
prosecution theory was that the same two men committed all of the robberies and
counsel’s strategy was to create doubt as to two or three of them thereby creating doubt
as to all of them. Counsel stated he did not think appellant’s request for a fingerprint
expert would be helpful. Appellant discussed alibis for dates unrelated to any of the
robberies which were irrelevant to any defense. He described his situation as “heavy”
and stated “I just would like to be basically vindicated from this because I’m a man.”
The trial court denied appellant’s Marsden motion, explaining that appellant had failed to
reach the burden required for the court to appoint new counsel. The court then turned to
2 People v. Marsden (1970) 2 Cal.3d 118.
6
the unresolved Faretta issue and asked appellant if he wanted to continue with counsel or
represent himself at trial on April 27, 2011. Appellant chose to continue with counsel.
On April 27, 2011, court convened with stand-in counsel for appellant.
Appellant’s appointed counsel was in trial but expected to be available by May 4, 2011,
and the court trailed the case to that date. During the hearing, appellant stated he wanted
to file a Faretta motion. The court informed appellant that he would have to be ready for
trial on May 4, 2011, and that no continuances would be permitted. Appellant asked
about filing “certain motions and whatnot” and the court told appellant if he filed them
they would be heard on May 4, 2011. Appellant responded, “That’s cool.” When the
court asked if appellant was certain he wanted to make the prosecutor’s job easier to gain
a conviction, appellant responded, “Well, it really don’t matter.”
Appellant completed the Faretta waiver form and the court questioned him about
his understanding of self-representation. The court told appellant he had the right to
represent himself but he would have to be prepared to proceed on May 4, 2011, the date
set for trial. Appellant stated he needed a continuance to file motions. The court stated
there would be no further continuances. When appellant asked why he was not granted a
continuance, the court stated that trial was set for May 4, 2011, and appellant needed to
have everything completed by that date. The court denied appellant’s request to represent
himself because appellant could not be ready to proceed to trial in a timely manner.
A defendant’s request for self-representation must be knowing, voluntary, and
unequivocal (Faretta, supra, 422 U.S. at pp. 835-836; People v. Barnett (1998) 17
Cal.4th 1044, 1087) and asserted “within a reasonable time prior to the commencement
of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5 (Windham).) “Motions
made just prior to the start of trial are not timely.” (People v. Scott (2001) 91
Cal.App.4th 1197, 1205.) The court should draw every reasonable inference against
waiver of the right to counsel. (Brewer v. Williams (1977) 430 U.S. 387, 391.) “In
determining on appeal whether the defendant invoked the right to self-representation, we
examine the entire record de novo.” (People v. Dent (2003) 30 Cal.4th 213, 218.)
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Appellant’s Faretta motion was untimely because it was made on the eve of trial.
(See People v. Clark (1992) 3 Cal.4th 41, 99 [Faretta request made during 10-day
trailing period was, in effect, made on the eve of trial and, therefore, was untimely].)
Appellant concedes his April 27, 2011 Faretta request “was made a week before trial”
but he argues “the case had not suffered from unusual delay.” That is not the law in
California. There is no hard and fast rule that a motion made before commencement of
trial—no matter how soon before—is deemed timely. (See People v. Wilks (1978) 21
Cal.3d 460, 467-468; People v. Burton (1989) 48 Cal.3d 843, 853-854.) The “reasonable
time” requirement is intended to prevent the defendant from misusing the motion to
unjustifiably delay trial or obstruct the orderly administration of justice. (People v.
Burton, supra, 48 Cal.3d at p. 852.)
When a Faretta motion is found to be untimely, the trial court may, in its
discretion, grant or deny it after inquiring into such matters as “the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute counsel, the
reasons for the request, the length and stage of the proceedings, and the disruption or
delay which might reasonably be expected to follow the granting of such a motion.”
(Windham, supra, 19 Cal.3d at p. 128.)
Having reviewed the record, we conclude the trial court did not abuse its
discretion in denying appellant’s request for self-representation. Appellant’s experienced
appointed attorney was prepared to begin trial.3 At the Marsden hearing approximately
one month earlier, appellant’s counsel had outlined the case strategy which included
establishing an alibi defense and appellant expressed no desire to file any motions.
Appellant appeared on April 27, 2011, the date set for trial, and after expressing a desire
for self-representation was told he could represent himself only if he was prepared to
proceed with trial as scheduled on May 4th, 2011. Appellant understood he would have
to present any motions on that date and responded “that’s cool.” However, when
3 Trial in appellant’s case was originally set for April 27, 2011 but was trailed to
May 4, 2011, only because appellant’s counsel was engaged in another trial.
8
appellant returned after a short recess he requested a continuance to file “motions and
whatnot.” Although a review of the Windham factors convinces us that the court did not
abuse its discretion in denying the motion, we also are convinced that appellant’s Faretta
motion was equivocal, an independent basis for us to uphold the court’s exercise of
discretion.
In People v. Marshall (1997) 15 Cal.4th 1, the court explained that circumstances
apart from the defendant’s own words may be indicative of an equivocal and therefore
invalid Faretta request: “The court faced with a motion for self-representation should
evaluate not only whether the defendant has stated the motion clearly, but also the
defendant’s conduct and other words. Because the court should draw every reasonable
inference against waiver of the right to counsel, the defendant’s conduct or words
reflecting ambivalence about self-representation may support the court’s decision to deny
the defendant’s motion. A motion for self-representation made in passing anger or
frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the
orderly administration of justice may be denied.” (People v. Marshall, supra, at p. 23.)
On March 22, 2011, the date originally set for trial, appellant first expressed a
desire for self-representation. At that time, appellant’s counsel had handled the case for
approximately six months. The trial court was legitimately concerned that appellant
might not want to really represent himself and gave appellant an opportunity to pursue a
Marsden hearing. The trial court’s instinct was correct as appellant spent more time
complaining about how counsel was handling his case than he did asking for self-
representation and ultimately chose not to represent himself. On April 27, 2011, the date
set for trial to begin, appellant again expressed a desire for self-representation. When the
court asked appellant if he was certain he wanted to make the prosecution’s job easier to
convict by foregoing counsel, appellant responded, “Well, it really don’t matter.”
Appellant also remarked that he wanted to be “vindicated” because he was “a man.” On
both occasions appellant waited until the day of trial to assert his Faretta right. He did
not believe his actions would make a difference and he did not show any indication that
9
he could competently represent himself at trial. A reasonable reading of this record is
that appellant’s desire for self-representation was motivated by his frustration and an
intent to delay proceedings. Considering all of the circumstances, appellant’s motion was
properly denied.
II. Substantial Evidence Supported Appellant’s Kidnapping for Robbery
Convictions
A. Contention
Appellant contends the evidence was insufficient to support the kidnapping for
robbery convictions. He contends “there was not substantial evidence that movement of
the victims increased the risk of harm to the victims.”
B. Standard of review
“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18
Cal.4th 297, 331; People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) We resolve all
conflicts in the evidence and questions of credibility in favor of the verdict, and indulge
every reasonable inference the jury could draw from the evidence. (People v. Autry
(1995) 37 Cal.App.4th 351, 358.) This standard applies whether direct or circumstantial
evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
C. Kidnapping for robbery-asportation requirement
“Any person who kidnaps or carries away any individual to commit robbery” is
guilty of kidnapping for robbery. (§ 209, subd. (b)(1).) Subdivision (b) of section 209
only applies “if the movement of the victim is [1] beyond that merely incidental to the
commission of, and [2] increases the risk of harm to the victim over and above that
necessarily present in, the intended” robbery. (§ 209, subd. (b)(2); People v. Rayford
(1994) 9 Cal.4th 1, 12 (Rayford).)
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“The rationale for [the asportation] requirement is that, given ‘the breadth of the
statutory definition of kidnapping, . . . it “could literally overrun several other crimes,
notably robbery and rape, . . . since detention and sometimes confinement, against the
will of the victim, frequently accompany these crimes. . . . It is a common occurrence in
robbery, for example, that the victim be confined briefly at gunpoint or bound and
detained, or moved into and left in another room or place.’” [Citations.] Our Supreme
Court concluded that ‘such incidental movements are not of the scope intended by the
Legislature in prescribing the asportation element of the same crime.’” (People v. Power
(2008) 159 Cal.App.4th 126, 137-138.)
With regard to the first prong of the asportation requirement, that the movement
must be more than merely incidental to the robbery, the jury must consider the ‘““scope
and nature’”” of the movement, including the distance a victim is moved. The question is
whether there was any gratuitous movement of the victims above that necessary to assist
the robbers in obtaining the property. (See People v. Washington (2005) 127 Cal.App.4th
290, 299, 301.) There is no minimum distance a defendant must move a victim to satisfy
the first prong. (People v. Vines (2011) 51 Cal.4th 830, 870 (Vines); Rayford, supra, 9
Cal.4th at p. 12.) The kidnapping statute does not speak of movement over any specified
distance, and limiting a jury’s consideration to a particular distance is “rigid and
arbitrary, and ultimately unworkable.” (People v. Martinez (1999) 20 Cal.4th 225, 236
(Martinez).)
We also consider the “context of the environment in which the movement
occurred.” (Rayford, supra, 9 Cal.4th at p. 12.) “This standard suggests a multifaceted,
qualitative evaluation rather than a simple quantitative assessment.” (People v.
Dominguez (2006) 39 Cal.4th 1141, 1152.) Whether movement was incidental is
necessarily connected to whether it substantially increases the risk of harm. (Ibid.) “[A]
movement unnecessary to a robbery is not incidental to it at all.” (People v. James
(2007) 148 Cal.App.4th 446, 455, fn. 6; see People v. Corcoran (2006) 143 Cal.App.4th
11272, 279-280.) “Lack of necessity is a sufficient basis to conclude a movement is not
merely incidental.” (People v. James, supra, at p. 455.)
The second prong of the kidnapping requirement, increased risk of harm to the
victim, requires the jury to consider factors such as the decreased likelihood of detection,
the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s
enhanced opportunity to commit additional crimes. (Martinez, supra, 20 Cal.4th at
p. 233.) That these dangers do not in fact occur does not mean that the risk of harm was
not increased. (Rayford, supra, 9 Cal.4th at p. 14.) While in most cases the increased
risk of harm is a risk of physical harm, this requirement can also be satisfied by a risk of
mental, emotional, or psychological harm. (People v. Leavel (2012) 203 Cal.App.4th
823, 833-834; People v. Nguyen (2000) 22 Cal.4th 872, 885-886.)
D. Movements of victims increased harm and was not incidental
In this case, there was substantial evidence that the movements of the robbery
victims were not solely incidental to the robberies and substantially increased their risk of
both physical and emotional harm. The movements went far beyond that which was
necessary to accomplish the robberies.
The victims were moved a substantial distance; in the four incidents in which
appellant was charged with kidnapping for robbery,4 the victims were all moved to the
back of the Check’N Go stores. As previously stated, there is no minimum number of
feet that a robbery victim must be moved to satisfy the asportation requirement. (Vines,
supra, 51 Cal.4th at p. 870.) Movement of as little as nine feet has been found to be a
substantial distance. (People v. Shadden (2001) 93 Cal.App.4th 164, 169.) Whether a
particular distance is substantial is not based solely on the number of inches and feet that
the victim is moved, but on an overall evaluation of the “context of the environment in
which the movement occurred.” (Rayford, supra, 9 Cal.4th at p. 12.)
4 Sun Valley, La Puente, Covina, and Pomona.
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The movement here, which was substantial in terms of distance, was not needed to
facilitate the robberies, but instead changed the victims’ environment and increased their
risk of harm. The victims were moved by force from the front of the stores, which was
visible from the store entrance, to closed-off areas at the back of the stores, and in three
of the four incidents ultimately locked in a bathroom. As a result, the victims were
isolated in a place where they could not be seen increasing their risk of physical harm.
Moving the victims to an isolated area, and restraining them also increased the risk of
psychological or emotional trauma.
The victim of the Pomona robbery was taken to the back of the store and
handcuffed to her desk, likely to cause her greater emotional trauma and fear, not
knowing how she could escape her restraints. The victims of the Sun Valley robbery
were further isolated as they had their cell phones taken and were unable to communicate
with anyone outside. After being taken to the back of the stores, the six victims of the
Sun Valley, La Puente, and Covina robberies were all forced into bathrooms. They were
already in a secluded area of the store and the forcible movement into the bathroom was
gratuitous.
Appellant’s reliance on People v. Hoard (2002) 103 Cal.App.4th 599 is misplaced.
There, the defendant committed robbery by forcing two jewelry store employees to move
about 50 feet to the office at the back of the store. The court reasoned: “Confining the
women in the back office gave defendant free access to the jewelry and allowed him to
conceal the robbery from any entering customers who might have thwarted him.
Defendant’s movement of the two women served only to facilitate the crime with no
other apparent purpose.” (Id. at p. 607, fn. omitted.) Here, the victims opened the safes
and cash drawers when ordered to do so by appellant and Utley and were then moved to
the back of the stores. As we have noted, the movement of the victims did not serve to
facilitate the robberies, and in one case was an actual hindrance to the robbery. In the
Sun Valley robbery, one of the victims was placed in the bathroom, then retrieved to
open a cash drawer before being returned to the bathroom once more. The movements of
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the victims here served other purposes squarely recognized by the Supreme Court in
People v. Dominguez, supra, 39 Cal.4th 1141, as supporting a finding of a substantial
increase in danger: removing the victims from public view, decreasing the odds that the
robberies of cash from the Check ‘N Go stores would be detected, increasing the risk of
harm should any victim attempt to flee, and facilitating the robbers’ escape. Indeed, there
was no purpose for moving the victims to the back of the store and in all but one case into
the bathrooms, except to facilitate these aims. In context, the movement was not merely
brief and trivial; to the contrary, it substantially increased the risk of harm beyond that
inherent in the crime of attempted robbery.
Considering the totality of the circumstances, there was substantial evidence to
support the kidnapping for robbery convictions.
III. Appellant’s Ineffective Assistance of Counsel Claim is Meritless
A. Contention
Appellant contends his trial counsel was constitutionally ineffective because he
failed to investigate whether the object described by witnesses as a “gun” and observed
on a surveillance video obtained from the La Puente robbery was in fact not a firearm.
Appellant argues there was a “reasonable probability that the jury would have acquitted
[him] of the felon-in-possession charges and found not true the firearm allegations.”5
B. Standard of review
To succeed on an ineffective assistance of counsel claim, a criminal defendant
must show both that trial counsel’s representation fell below an objective standard of
reasonableness and that it is reasonably probable that the result of the proceeding would
have been different if counsel’s error had not occurred. (Strickland v. Washington (1984)
466 U.S. 668, 686-688, 694-695 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171,
215-218; see People v. Benavides (2005) 35 Cal.4th 69, 92-93.) Appellant must establish
5 Appellant does not contend that his convictions for eight counts of second degree
robbery and seven counts of kidnapping for robbery, or enhancements for prior
convictions, resulted from ineffective assistance of counsel.
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ineffective assistance of counsel by a preponderance of evidence. (People v. Ledesma,
supra, at p. 218.)
An ineffective assistance of counsel claim fails on an insufficient showing of
either incompetency or prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
On the first prong of the ineffective assistance of counsel test, our scrutiny of defense
counsel’s performance must be highly deferential. We presume that defense counsel’s
conduct falls within a wide range of reasonable representation. (Strickland, supra, 466
U.S. at p. 689.) In reviewing ineffective assistance of counsel claims, appellate courts do
not generally second-guess counsel’s tactical decisions. (People v. Hinton (2006) 37
Cal.4th 839, 876; People v. Holt (1997) 15 Cal.4th 619, 703.) Where the issue is raised
in a motion for new trial, we defer to the trial court’s finding that appellant received
adequate representation. (People v. Andrade (2000) 79 Cal.App.4th 651, 660.)
The second prong—prejudice—is established if counsel’s failings render the
jury’s verdict unreliable or the trial fundamentally unfair. Counsel’s failings must have
undermined the proper functioning of the adversarial process that we cannot rely on the
trial as having produced a just result. (Strickland, supra, 466 U.S. at p. 686; In re Cudjo
(1999) 20 Cal.4th 673, 687.) The failure must be such that it undermines our confidence
in the outcome of the trial. (People v. Majors (1998) 18 Cal.4th 385, 403.) The
deficiency must be egregious. (People v. Hart (1999) 20 Cal.4th 546, 633.)
C. Background
After the jury returned a verdict and before appellant’s trial on his prior
convictions, the trial court granted appellant’s motion to represent himself. Appellant
hired a video and firearms expert, Dr. Bruce Krell, to examine the surveillance tape from
the La Puente robbery. Based on Krell’s conclusion that the gun in the surveillance video
looked like a pellet gun and not a firearm, appellant argued in his new trial motion that
his defense counsel was ineffective because he had not retained a firearms expert.
Defense counsel testified at the hearing on the motion for new trial. He testified that he
did not consult a firearms expert because even if he had obtained evidence that the gun
15
was not a firearm he would be required to argue inconsistent theories—appellant did not
commit the robberies but if he did, the gun he used was not real. In his experience,
arguing alternative theories always resulted in losing both. The trial court concluded that
defense counsel had provided “an adequate, professional and appropriate explanation” for
his decision not to consult with a firearms expert. Given defense counsel’s experience
and the defense theory of misidentification, the trial court found that defense counsel
made a reasonable tactical decision not to argue in the alternative stating, “it was a
reasonable tactical decision for [defense counsel] to focus on the I.D. issue and to try to
convince the jury that [appellant] [was] not there as opposed to going—as opposed to
arguing either in the alternative or even in place of that, ‘Look, the gun allegations
weren’t proved’ . . . or other legal issues that might eliminate . . . either certain charges or
certain allegations or reduce them somewhat.”
D. Analysis
Appellant did not satisfy either prong of a claim of ineffective assistance of
counsel. Appellant insisted he had no involvement in any of the robberies and insisted he
should be found not guilty of all charges thereby eliminating any possibility that his
counsel could negotiate a plea agreement that could reduce appellant’s overall exposure.
Defense counsel made it clear during a pretrial Marsden hearing and during the hearing
on the motion for a new trial that the prosecution theory was that all the crimes were
committed by the same two people. Counsel’s strategy was to present a case of mistaken
identification because if appellant could present an alibi to some counts he could not have
committed all of them. That strategy was the only means by which appellant could have
been acquitted on all counts and all special allegations. Appellant did not object at the
March 22, 2011 Marsden hearing when defense counsel informed appellant of that
strategy and in fact supplied defense counsel with more information on alleged alibis for
the crimes.6
6 Appellant did not contradict defense counsel’s testimony that appellant was in
agreement with the strategy of misidentification in an attempt to win outright acquittal.
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Testimony by Krell, if believed, that the “gun” used in the La Puente robbery was
not a real gun would have been of little assistance to appellant’s claim that he was “not
guilty of all charges.” The evidence showed that in some robberies both robbers had
guns, while in other robberies only one robber had a gun. Alma Sandoval testified that
the gun appellant pointed at her during the Covina robbery was black and small and
looked like a nine-millimeter automatic pistol. Krell described the “gun” from the La
Puente robbery as “large” and he did not compare the image of the gun to any nine-
millimeter semiautomatic firearms. Krell’s testimony, if believed, was of limited benefit
and would have had no application to any of the other robberies. Had defense counsel
presented such evidence he would have been forced to argue in the alternative—appellant
should be acquitted of the robbery and kidnapping at the La Puente store, but if convicted
he should be acquitted of using a firearm. The record disclosed defense counsel
employed a coherent defense strategy throughout trial, attacking the identification of
appellant by the eyewitnesses. Defense counsel’s strategic decision to not present a
firearms expert was the only way to secure an acquittal on all charges. Lack of success
does not reflect incompetence of counsel.
Appellant’s claim that defense counsel actually did argue alternative theories to
the jury and did not “pursue solely a strategy that [appellant] was not one of the robbers”
is incorrect. Defense counsel’s questions regarding details of what the victims observed
regarding the guns during the robberies challenged the victims’ recollection skills and
supplemented defense counsel’s misidentification strategy. Counsel also used that
evidence to make a motion to dismiss pursuant to section 1118.1, outside the presence of
the jury, at the end of trial.
Nor can appellant show prejudice in this case. Although appellant now argues on
appeal that a firearms expert may have assisted in the defense of “four counts of felon in
possession of a firearm, and several allegations that either [appellant] or a principal used
a firearm during the robberies” his stated goal until filing a motion for new trial was total
acquittal. Because appellant was an “eight striker” with three prior prison terms, a single
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felony conviction would have exposed him to a 40-year-to-life sentence. Appellant was
sentenced to hundreds of years to life in prison and all of Krell’s testimony related to a
single enhancement of a single count which amounted to a 10-year portion of that
sentence. If appellant had been sentenced for only the robbery convictions and prior
felony enhancements, that is, no kidnapping counts or firearms enhancements, his
sentence still would have been hundreds of years to life in prison.
As the United States Supreme Court has instructed: “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel’s judgments.” (Strickland, supra, 466 U.S. at pp. 690-691.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J. *
FERNS
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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